The loss of a loved one can be an incredibly difficult and stressful time in one’s life. This can be made worse when someone realises they have been left out of a will altogether or have not received the inheritance that they think they ought to have received. An often-misguided myth is that many people believe that their will cannot be contested if they leave their family a token gift. This is not the case.
Regardless of the gift left in the will, an eligible person can still lodge a family provision claim if they consider that their gift is not adequate for their proper maintenance or advancement in life. Understanding what your rights are, what to do and how to navigate it can be challenging for anyone, so it is important to have the right legal advice by your side, so you’re not left out.
What is a Family Provision Claim?
A Family Provision Claim is an application to the Supreme Court of NSW for a share, or a larger share from the estate of a deceased person. An application can be made if you are an eligible person who has been left out of a will, or believe you are entitled to receive something, or more than the will claims. Most claims are settled through early negotiations or a mediation conference, which if successful can minimise the costs for all parties and reduce the stress of a long and drawn-out Court battle.
Who is Eligible to Submit a Family Provision Claim?
Are you eligible to claim for provision? You must be one of the following:
- Spouse of the deceased including defacto partner
- Child/children of the deceased
- Former spouse
- Dependent of the deceased
- Person with a close relationship and who was co-habiting with the deceased
What to Do Before You Submit a Family Provision Claim?
A Family Provision Claim must be filed with the Supreme Court within 12 months of the date of death of the deceased, but before you do this, it is recommended that you discuss your options with a solicitor to establish the chances of making a successful claim. An unsuccessful claim can be expensive and is usually not funded by the estate.
There are some cases in which the court will allow an exception if the time limit has lapsed to make a claim. However, they will need to be provided with significant justification to evidence the excuse or explanation for the delay. Our experienced team of professionals can discuss this with you in more detail and advise you based on your specific circumstances.
What Does the Supreme Court Consider for Each Family Provision Claim?
There are many aspects to your claim that can be considered by the Supreme Court, but an experienced solicitor will be able to guide and advise you on whether your claim would be effective based on some of these considerations:
- The nature of the relationship between the applicant and deceased
- Value and nature of the deceased estate
- Financial circumstances of the applicant and if they are supported by another person
- Whether the applicant has any special needs
- Age of the applicant
- Contributions by the applicant to the estate, including any conduct of the deceased’s affairs
- If the applicant had previously been provided for by the deceased
- Other claims to the estate
- Applicable customary law if the deceased was Aboriginal or Torres Strait Islander
The Process in Making a Family Provision Claim
If you are eligible to make a Family Provision Claim, an application is made to the relevant Court accompanied by an affidavit detailing all relevant evidence. The matter is listed for compulsory mediation in an attempt to resolve the matter. If unsuccessful at mediation, the matter would progress to be listed for hearing.
What If I Am an Executor Who is the Subject of a Family Provision Claim?
As executor, you are entitled to claim any costs with respect to defending a Family Provision Claim from the assets of the estate. You will need to seek the advice of an experienced lawyer as the estate will not be distributed until such time as the claim has been finalised.
What If the Deceased Died Without a Will?
This is referred to as ‘intestate’ and in this instance, a surviving relative of the deceased may still be able to make a Family Provision Claim against the estate. The court will need to be satisfied that the applicant is an ‘eligible’ person. Again, this is something our expert team can assist you with, including the process in this instance regarding the rules of intestacy, Letters of Administration and the Succession Amendment (Intestacy) Act 2009 and how it applies to your specific circumstances.
Contact Us for Expert Legal Advice
At Carter Ferguson Solicitors, our experienced family lawyers can help you to understand your rights, timeframes and the process involved in lodging a Family Provision Claim. We have years of experience in assisting clients navigate this daunting and often stressful process. Allow us to explain what’s involved in the simplest manner possible and clarify whether you have any rights to a claim if you have been unfairly compensated. We are highly empathetic and caring at what might be a very emotional time. At Carter Ferguson Solicitors, we are exceptional at law, but always human at heart.
To speak to one of our solicitors about Family Provision Claims, call us today.
Contact Information:
- Gerringong: Carter Ferguson Gerringong
- Berry: Carter Ferguson Berry
- Fairy Meadow: Carter Ferguson Fairy Meadow
- Kiama: Carter Ferguson Kiama
- Nowra: Carter Ferguson Nowra
- Wollongong: Carter Ferguson Wollongong
Contesting a Will FAQs
1. What Does Contesting a Will Involve?
Contesting a will involves legally challenging the contents or validity of a will. If you have been left out of a will or believe that you have not received adequate provision, you can contest the will through a Family Provision Claim. This process typically involves applying to the Supreme Court, where you can seek a share or a larger share of the deceased’s estate.
2. Who Can Contest a Will?
You may contest a will if you are an eligible person. This includes:
- The spouse or de facto partner of the deceased
- The children of the deceased
- A former spouse
- Dependents of the deceased
- A person who had a close relationship and was living with the deceased
3. What Are the Grounds for Contesting a Will?
The main ground for contesting a will is that the provision made for you in the will is not adequate for your proper maintenance, education, or advancement in life. If you have been left out of a will entirely or believe you have not received your fair share, you can lodge a Family Provision Claim. Other grounds can include issues with the validity of the will, such as lack of testamentary capacity or undue influence.
4. What Is the Time Limit for Contesting a Will?
In New South Wales, you must file a Family Provision Claim within 12 months of the date of the deceased’s death. If you miss this deadline, you may still be able to contest the will, but you will need to provide a significant justification for the delay. It is essential to seek legal advice promptly to ensure you meet all necessary deadlines.
5. What Costs Are Involved in Contesting a Will?
Contesting a will can be expensive, particularly if the claim is unsuccessful, as these costs are usually not covered by the estate. Legal fees and court costs can add up, so it is important to discuss the financial implications with a solicitor before proceeding. An experienced lawyer can help you assess the likelihood of a successful claim and guide you through the process to minimise costs.
For further assistance and to discuss your specific circumstances, contact our team at Carter Ferguson Solicitors. We provide expert advice on contesting a will and can help you understand your rights and options if you have been left out of a will.
